Terms and Conditions

Terms and Conditions iCON International Container Service GmbH

Preamble

Any conditions, agreed in individual contracts as part of the contractual relationship shall take precedence over these General Business Terms. Should individual conditions be rendered invalid as a result, this shall not affect the remaining conditions, and each of these shall remain in full force and effect.

The buyer’s General Business Terms shall only be agreed as effective if they have been brought to iCON’s attention promptly and do not conflict with the conditions agreed in individual contracts and the following conditions.

 

1. Order and order acceptance

(1) All orders the buyer issues directly from iCON or via a field sales representative must be accepted by a written order confirmation unless they are a cash transaction.

(2) We reserve the explicit right to make changes to the items ordered and delivered on the order as part of technical progress, particularly with respect to material and design.

2. Delivery date

(1) The following applies if a delivery date is agreed or required:

The delivery dates mentioned by the supplier are not binding unless they have been explicitly confirmed in writing by iCON as “a binding delivery date”.

(2) Delivery by iCON shall depend upon the prompt and correct delivery to iCON. iCON shall inform the buyer without delay, if it has not received any goods or supplies. If iCON has not received goods or services, the purchase contract shall be deemed to have not been concluded. iCON shall not accept any procurement risk.

(3) The buyer must meet its contractual obligations for the delivery date to be met, particularly to settle any agreed payments and, if necessary, provide any agreed securities.

(4) In addition, in the event of a delay for which iCON is responsible, the buyer is only entitled to assert further rights if a grace period of at least three weeks that it has set has lapsed unsuccessfully.

 

3. Shipping

(1) If it is necessary to ship the goods ordered, this shall be undertaken from the supplier’s registered office/depot at the buyer’s risk and expense. In the absence of any special agreement, iCON shall be free to choose the transport company and the type of transport. Risk shall also pass to the buyer with dispatch from the supplier’s registered office/depot if a carriage-paid delivery is agreed.

(2) If dispatch is delayed because of circumstances for which the buyer is responsible, the risk shall pass to the buyer from the point the goods are ready for dispatch. The buyer must bear any costs incurred as a result of the delay (in particular the cost of warehousing).

(3) iCON is not obliged to insure or have the shipment insured against transport damage unless iCON has accepted a corresponding obligation in writing.

 

4. Liability for defects

(1) The buyer is obliged to examine the goods supplied as soon as they are delivered and notify iCON in writing of any defects straight away (at the latest by the next working day following delivery). Defects which are reported late, i.e. contrary to the above obligation, shall not be taken into account by the supplier and are excluded from the warranty. Notice of defects shall only be accepted by iCON if they have been communicated in writing. Complaints made to field sales representatives or transport operators or other third parties do not constitute timely and formal complaints.

(2) iCON shall only accept the necessary return of goods because of a defect with its prior consent. iCON is not obliged to accept any returns that are made without its prior consent. In this case, the buyer shall bear the costs of the return shipment.

(3) In the event that a repair or replacement is made on the basis of a justified notice of defect, the conditions pertaining to the delivery date shall apply accordingly.

(4) The presence of a defect identified in this way and notified by an effective notice of defects shall justify the following rights of the buyer:

(a) In the event of a defect, the buyer first has the right to demand supplementary performance from iCON. It is at iCON’s discretion whether to supply a new item or to repair the defect.

(b) Moreover, iCON is entitled, if attempted supplementary performance should fail, to undertake further supplementary performance at its own discretion. Only if the repeated supplementary performance fails, is the buyer entitled to withdraw from the contract or to reduce the purchase price.

(5) The buyer may only demand compensation or compensation for futile expenses in cases of gross negligence or a wilful breach of the obligation to supply goods free of defects. It must prove the reasons for the damage and its extent. The same applies to futile expenses.

(6) The warranty period for new and second-hand goods is one year from delivery. In any case, the buyer must prove that the defect already existed at the time of delivery.

 

5. Liability for breach of obligation by the supplier in all other respects

Notwithstanding the conditions under the warranty and other special rules made in these terms and conditions, the following shall apply in the event of a breach of obligation by the supplier:

(1) The buyer shall grant iCON a reasonable period of grace to rectify the breach of obligation, which may not extend beyond three weeks. Only once the period of grace has lapsed unsuccessfully may the buyer withdraw from the contract and/or demand compensation.

(2) The buyer may only demand compensation in cases of a grossly negligent or wilful breach of obligation by iCON. Compensation for loss in lieu of performance (in the event of non-performance, section 280 III in conjunction with section 281 BGB (German Civil Code) and losses due to delay (section 280 II in conjunction with section 286 BGB) is limited to the negative interest. Compensation because of non-performance or a failure to perform as prescribed is limited to the purchase price (section 2822 BGB). Compensation for loss in lieu of performance is excluded in the absence of an obligation to perform (impossibility).

(3) Withdrawal is not permitted if the buyer is solely or largely responsible for circumstances that would entitle it to withdraw during the buyer’s default in acceptance.

 

6. Exclusion of procurement risk and guarantees

iCON shall not accept any procurement risk nor any kind of guarantees unless an express written agreement has been entered into with the buyer.

 

7. Prices

The price is calculated from the supplier’s registered office/depot in euro plus the statutory rate of VAT.

 

8. Payment terms

(1) All iCON’s invoices are to be paid net cash. A deduction of a discount requires prior written agreement.

(2) If the payment period is exceeded and after a reminder has been issued, interest on late payment shall be paid at a rate of 8% above the respective base rate of Deutsche Bank on the invoice amount.

(3) Bills of exchange shall only be accepted on account of payment following prior written agreement. iCON shall charge discount fees regardless of the time the bill of exchange is accepted from the claim’s due date. iCON shall not assume any liability for timely collection or timely objection.

(4) If bills of exchange or checks are not credited in due time by the buyer, all iCON’s other claims against the buyer shall become due at this time. Otherwise, existing payment terms shall lapse. The same applies if a claim is not paid when it becomes due.

(5) Any retention of payment or offset by the buyer is excluded with the exception of undisputed or legally established claims.

(6) All claims of iCON against the customer, regardless of the legal relationship, are due for payment immediately if a situation should arise which, according to statutory or contractual provisions, entitle the supplier to withdraw from the contract.

 

9. Retention of title

(1) Each of the goods supplied by iCON shall remain its property until the purchase price has been settled in full and until all claims resulting from the business relationship have been paid in full (extended retention of title). Any kind of disposal by the buyer of the goods subject to a retention of title is only permitted within the buyer’s normal course of business. Under no circumstances may the goods be pledged to third parties as security as part of the normal course of business.

(2) In the event that the goods are sold in the normal course of business, the purchase price paid replaces the goods. The buyer now assigns all claims arising from any sale to iCON. The buyer is authorised to collect these claims, provided it meets its payment obligations to iCON. With regard to the extended retention of title (advance assignment of the respective purchase price claim) an assignment to third parties, in particular, to a financial institution, is contrary to the contract and therefore inadmissible. iCON is entitled at any time to check the buyer’s sale documents at any time and to inform the buyer about the assignment.

(3) If the buyer’s claim from the resale has been included in a current account, the buyer hereby also assigns its claim from the current account to its customer over to iCON. The assignment shall be made in the amount iCON had charged the buyer for the reserved goods that have been resold.

(4) In the event that the goods are seized at the buyer, iCON must be informed straight away by sending a copy of the debt enforcement record and an affidavit that the goods seized are the goods that iCON delivered and subject to a retention of title.

(5) If the value of the securities in accordance with the preceding paragraphs of this section exceeds the amount of the outstanding claims secured in this way by more than 20% for the foreseeable duration, the buyer is entitled to demand the release of securities from iCON to the extent a surplus value exists.

(6) The assertion of the supplier’s rights from the retention of title shall not release the buyer from its obligations. The value of the goods at the time of the return shall only be credited to iCON’s existing claim against the buyer.

 

10. The supplier is entitled to withdraw from the contract for the following reasons:

(a) If, contrary to the assumption that existed prior to conclusion of the contract, the buyer is not creditworthy. It can be automatically assumed that the buyer is not creditworthy in the event that a bill of exchange or cheque is rejected, payment is stopped by the buyer, or an attempt to impose foreclosure at the buyer is unsuccessful. These do not have to concern relationships between iCON and the buyer.

(b) If it emerges that the buyer has provided incorrect information with regard to creditworthiness and this information is of significant importance.

(c) If iCON sells the goods that are subject to a retention of title differently than in the buyer’s normal course of business, in particular, by a transfer of security or by pledging. Exceptions to this are only valid if iCON has given its consent to the sale in writing.

 

11. Description of the condition of the goods

(1) The condition of the goods is described in the corresponding order confirmation. The following applies here:

(a) IICL: always applies to the latest IICL guideline in accordance with the latest publication of “The Institute of International Container Lessors“ (https://www.iicl.org/).

(b) Cargo worthy: the container is secured for transport and is wind- and waterproof. Secured for transport means that the condition of the container meets the requirements for transport in international marine transport. Furthermore, the container is provided with a valid CSC label or could be supplied with a valid CSC label based on the condition.

(c) Weatherproof/watertight: The container is wind and waterproof.

(d) As is: the container is no longer necessarily wind- and waterproof and/or cargo worthy.

 

12. Place of performance and jurisdiction

(1) If the buyer is an entrepreneur or legal entity or special fund under public law, the registered office of iCON international container service GmbH, Hamburg is an exclusive place of jurisdiction for all disputes arising, directly or indirectly, from the contractual relationship. All obligations arising from the contractual relationship shall be deemed to be performed at the supplier’s registered office.

(2) The law of the Federal Republic of Germany shall apply in every case, in particular, to international deliveries.

Terms and Conditions iCON International Container Service (America) LLC

General

It is understood and agreed that this invoice embodies the complete understanding of Buyer and iCON relative to this sale and the terms and conditions thereof may not be revised or modified in any way, unless agreed upon in writing and so signed by Buyer and by iCON. Prior to the purchase of the Buyer, the Seller has used the Equipment solely for international transportation. Buyer acknowledges that the sold Containers are instruments of international traffic as defined by (19 U.S.C. 1322(a)), under temporary import and that this Equipment is intended for use in international trade only. The title of the Equipment is transferred to the Buyer whilst the Equipment is in international circulation. If the domestic Buyer does not use the Containers in international traffic (shipping containers), Buyer agrees to arrange for reporting, domesticating, and neutralizing the container at his own cost. Buyer accepts such responsibilities upon taking control of the container and/or making invoice payment.

Payment

Buyer must pay the invoice for the Equipment in quantities and prices as specified in this invoice in full without any deduction. If not otherwise agreed with in writing, the payment is due upon receipt of invoice immediately and prior to delivery of any Equipment to the Buyer, by either company check or wire transfer. Overdue payments may be subject to a service charge equal to the lesser of 1.5% per month or the highest legal rate. All Containers remain the property of the Seller until payment is received by iCON in full. Failure of Seller to deliver all Units in this contract shall not be a breach by Seller, but shall simply reduce the number of Units contracted and consequently reduce the amount owed on a per Unit cost.

Delivery

Unless otherwise indicated on the front side of this invoice, all Equipment is sold “as is, where is”, as inspected or as could have been inspected. Buyer acknowledges that one-trip Units are used one-way by international steamship lines and may arrive by ship, truck, rail or other means and that such Equipment will have wear and tear and other marks related to such use. Buyer has to pick up Equipment at their own expense, under release number given, within 14 days from notification/release from the location indicated by the Seller. Thereafter, Buyer will be billed the storage charges as occurred but no less than of $3.00 per day/unit. Or, otherwise, iCON may cancel the sale. The Buyer is to contact the depot prior to pick up to make sure equipment is accessible. iCON is not responsible for any waiting time or dry runs and shall have no liability whatsoever for loss or damage due to late delivery or non-delivery of the Equipment subject to this invoice. Buyer agrees to accept the Unit in the condition that it leaves from the depot. In the event that incorrect Equipment is picked up by Buyer’s negligence, Buyers must by all means return incorrect Equipment to the location where it was picked up at their own expense.

Taxes

The purchase price does not include taxes of any kind or other amounts. Buyer agrees to assume exclusive liability for and to pay, indemnify and hold iCON harmless for all sales or use taxes, transfers, titles and registration fees, VAT, domestications, personal property taxes or other taxes, tolls, levies, imposts, duties or governmental charges imposed in connection with the sale of Equipment covered by this invoice, or any services rendered by iCON in connection with this invoice, including any penalties, fines or interest thereon.

Domestication

The Buyer agrees that the Equipment will not be resold or otherwise disposed of in an country unless Buyer pays all applicable customs or/and other taxing authorities including any value added tax or other taxes and import duties due upon import and/or domestication of the Equipment, or any services rendered by iCON in connection with this invoice, including any penalties, fines or interest thereon. If Buyer chooses to import Equipment in order to convert them to domestic use, then the Buyer agrees to do so entirely at their own costs including any customs and/or import dues and taxes upon domestication. iCON makes no representation as to the prior payment or current application of import duties or other taxes.

Owner markings

Buyer agrees and is responsible at his expense, for the “neutralization” of the Equipment and will promptly remove all previous ownership markings and identification plates. Buyer will defend at its own expense and indemnify and hold harmless iCON from and against any and all claims, losses, damage, liabilities, demands, actions, costs, expenses and fees (including attorney’s fees) arising out of, or in connection with, the sale of the Equipment to Buyer or any subsequent use, operation or disposition of the Equipment not being properly neutralized.

Disclaimer of Warranties

All Equipment sold under this agreement is purchased by the Buyer on an “AS IS, WHERE IS” basis without covenant or warranty by the Seller of any kind, expressed or implied including without limitation, warranties of merchantability, fitness for particular purpose of condition of the Equipment. iCON disclaims and Buyer waives and releases iCON from any and all representations and warranties in all respects. Buyer acknowledges and agrees that iCON shall have no liability to them for any claim, loss or damage, either directly, indirectly, incidentally or consequentially by the Equipment or whatsoever in connection therewith arising in strict liability or otherwise.

Jurisdiction

This Agreement shall be construed and interpreted according to the laws of the State of Florida with its place of jurisdiction in the city of Plantation.

Other

Consequential Damages: Under no circumstances shall iCON be liable hereunder for any lost of profits for special, consequential, or exemplary damages, even if iCON has been advised of the possibility of such damages.

Remedies: The remedies reserved to iCON herein shall be cumulative and in addition to any other or further remedies provided by law.

Waiver: iCON’s failure to insist on performance of any of the terms and conditions of this invoice, or iCON’s waiver of any breach, shall not act as a waiver of any other term or condition or any subsequent breach.

Furthermore, if iCON’s performance of this sale is, in whole or in part, prevented or hindered by any cause whatsoever, iCON shall have the right to cancel, without any liability on its part, the entire or any portion or portions of this order so affected.

If you no longer wish to receive a copy of our ‘Terms and Conditions for Sale of Equipment’ with every invoice, please notify us by returning the following statement duly signed by an authorized officer.

We (the Buyer) herewith accept this ‘Terms and Conditions for Sale of Equipment’ as advised to me by iCON for all future purchases and confirm that we will no longer require them to be attached to any future invoices and/or sales paperwork.